Legally Speaking | Deportation and the Supreme Court: Understanding the apex court's stand - Hindustan Times
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Legally Speaking | Deportation and the Supreme Court: Understanding the apex court's stand

May 28, 2024 11:07 PM IST

India does not have comprehensive domestic legislation nor is it a signatory to the the United Nations’ 1951 Refugee Convention and its 1967 Protocol.

Citizenship, refugees, illegal migrants, and deportation are grey areas in the Indian legal space. India does not have comprehensive domestic legislation nor is it a signatory to the the United Nations’ 1951 Refugee Convention and its 1967 Protocol. India also does not recognise the term refugee and any foreigner who does not have a valid visa or stays beyond the permitted time of his visa-- is treated as an illegal migrant.

The Supreme Court. (ANI)(HT_PRINT) PREMIUM
The Supreme Court. (ANI)(HT_PRINT)

The entire domain is governed by Standard Operating Procedures and Executive Orders. With different rules and systems in place for the migrants based on their country of origin, the ambiguity increases.

Two recent orders of the Supreme Court, one ordering deportation and another staying the deportation have rekindled the confusion on the same.

On 16th May 2024, the apex court in Rajubala Das v. Union of India ordered the Union of India to take immediate steps to deport 17 persons who have been declared foreigners. Rajubala Das had moved the Supreme Court seeking the release of her husband who was lodged in a detention camp in Assam and adjudged a foreigner.

It is important to note that the Supreme Court in another case in 2019 had already upheld the order declaring her husband as a foreigner.

Rajubala was basing her prayer on the May 2019 order of the Supreme Court in Supreme Court Legal Services Committee v. Union of India and Anr. The apex court, in that case, had held that the detainee who had served long periods in detention camps awaiting their deportation could be released on the completion of three years or more on the execution of bond with two sureties (being Indian citizens) of 1,00,000/-, after providing a verifiable address, biometric details etc.

Rajubala raised the issue with the surety amount stating that the same was too high for poor people to raise and pleaded that for a person already declared a foreigner getting people to stand surety was difficult.

In the course of the hearings, the Supreme Court on April 30, 2024, ordered the Assam State Legal Services Authority (ASLSA) to visit the detention centres of declared foreigners and ascertain how many had completed a period of more than two years.

The Court had also ordered the ASLSA to submit a report on the facilities made available to declared foreigners. It was in regard to this order that the Supreme Court on May 16, 2024, based on the report submitted by ASLSA, ordered the Union to take steps to deport the 17 foreigners of whom 4 had completed more than two years in the detention camp. Thus, in this case, there was no issue with regard to the determination of citizenship but only with regard to the detention.

On May 17, 2024, in Maya Barman @ Maya Rani Barman v. Union of India, the Supreme Court stayed the deportation of the petitioner. Maya Barman had been adjudged as a foreigner by the Foreigners Tribunal 1st Lakhimpur on November 22, 2019, and the said order was upheld by the Guwahati high court on January 11, 2024.

It was in an appeal against the Guwahati high court order that Maya had approached the Supreme Court and been successful in securing a stay on any coercive steps including deportation. Thus, unlike the previous case, the issue here was whether the petitioner was an Indian citizen or a foreigner.

There are other petitions similar to the one filed by Maya wherein the Supreme Court is hearing appeals questioning the status of citizenship. On September 23, 2022, the Supreme Court ordered a similar stay in the case of Lal Bhanu @ Musstt. Lal Banu v. Union of India. The Supreme Court noted that her entire family had been recognised as citizens except her.

Most of these cases draw back to the National Register of Citizens or NRC. The NRC was first introduced in 1951 and Assam became the only state to maintain the register owing to its geographical position which made illegal migration easy. With the war in Bangladesh, there was an increased influx of Bangladeshis. In 1985 the Assam accord was signed wherein it was stipulated that any foreigner who entered Assam after March 25, 1971 would be detected and deleted from electoral rolls, and then deported.

In 2013, subsequent to the Supreme Court’s order on petitions asking for a new NRC list, an updated list was released on August 31, 2019. However, the updated list ended up excluding more than 19 lakh persons. This led the Foreign Tribunals to take up cases to determine citizenship and the detention of people in camps. The Foreigners Act by virtue of Section 9 requires the person whose citizenship is in question to prove he/she is a citizen of India. This places an unfair burden on the person who to start with is usually short of resources.

Further, there is a lot of ambiguity with regard to what papers are considered evidence of citizenship and how to prove the same. For instance, in the case of Maya Barman, the Tribunal and High Court refused to accept the school leaving certificate because the principal who had issued it was not examined.

On the other hand, even deportation is not an easy exercise. A person cannot be deported unless the country he is to be deported accepts that he is a citizen. The Supreme Court in Ana Parveen and Anr v. Union of India on April 29, 2022, ordered the release of a person who had been detained for seven years on the count of being a Pakistani national but the same was not confirmed by the Pakistani government.

The Court held that the indefinite detention of a foreigner is also a violation of Article 21 and cannot be sustained. While the adjudication by Courts takes years, the detainee continues to languish in detention centres.

A clear legislation on the issue of citizenship, and deportation premised on principles of natural justice and fairness is the need of the hour.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.

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